O’Brien said she posted the statement that her students were “future criminals” because of “their behaviors, not because of their race or ethnicity.” She also stated that “six or seven of her students had behavioral problems, which had an adverse impact on the classroom environment.” Id. at 4 – 5.

In finding that she failed to establish her Facebook postings were protected speech, the Appellate Division found that “even if O’Brien’s comments were on a matter of public concern, her right to express those comments was outweighed by the district’s interest in the efficient operation of its schools.” Id. at 11.

This ruling sits in contrast to the NLRB’s frequent warnings regarding the sanctity of worker postings — especially when the postings pertain to workplace conditions. The cringe-worthy nature of these postings, the fact they were directed at first graders, and the deference accorded administrative proceedings certainly all made it easy for the Appellate Division to rule as it did. In other words, employers should not take great comfort in this ruling when evaluating whether to discipline employees for inflammatory postings.